Supreme Court Digest

Supreme Court Digest

This column summarizes all decisions of the Wisconsin Supreme Court
(except those involving lawyer or judicial discipline, which are
digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas
J. Hammer invite comments and questions about the digests. They can be
reached at Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.

Corrections

Probation/Parole Revocations - Certiorari Review - Right to
Counsel

The two petitioners in this case were represented by counsel at their
respective parole revocation hearings. Following an adverse decision in
each case, counsel timely filed an administrative appeal. The Division
of Hearings and Appeals rejected both appeals. The petitioners claim
that their counsel promised to file for certiorari review of their
revocations in the circuit court but failed to do so in a timely manner.
Both subsequently sought habeas corpus relief in the circuit court,
alleging ineffective assistance of counsel for failure to timely file
their petitions for certiorari review. The circuit courts denied the
habeas corpus petitions. Both petitioners then appealed to the court of
appeals, which consolidated their cases and certified them to the
supreme court.

In a majority decision authored by Justice Bradley, the supreme court
reversed the circuit court orders dismissing the habeas corpus
petitions. "While parolees have a right to counsel at the parole
revocation hearing, we conclude that there is no administrative or
statutory right to counsel to timely file for certiorari in the circuit
court. However, we determine that the petitioners here are entitled to
relief on equitable grounds because they timely requested counsel to
file for certiorari review, counsel promised to do so, and as a result
of counsel's failure to timely file, they were denied certiorari review"
(¶ 3). "Provided that the petitioners timely pursue relief, the
45-day time limit for the filing of a writ of certiorari is equitably
tolled as of the date that counsel promises to file for certiorari
review" (¶ 38). Regarding the application of this decision, the
court held that its tolling rule should not apply retroactively, but
rather be limited to cases for which certiorari review is still
available, including the petitioners in this case.

On this appeal the petitioners did not contend that there is a
constitutional right to counsel to file their petitions for certiorari
review. The supreme court agreed. "The [United States] Supreme Court has
not extended a per se Sixth Amendment right to counsel at revocation
hearings or certiorari review of revocation decisions in part because
probationers and parolees have a more limited due process right than
those who have not yet been convicted of a crime" (¶ 22).

Finally, in a footnote, the court observed that its analysis applies
to both parole and probation revocation hearings. See ¶ 2
n.2.

Chief Justice Abrahamson filed a concurring opinion. Justice Sykes
also filed a concurrence that was joined by Justices Wilcox and
Crooks.

Criminal Procedure

Sentencing - Exercise of Sentencing Discretion

In the legendary sentencing case of McCleary v. State, 49
Wis. 2d 263, 182 N.W.2d 512 (1971), the supreme court instructed trial
judges that evidence of the exercise of sentencing discretion must be
set forth on the record: "there must be evidence that discretion was in
fact exercised. Discretion is not synonymous with decision-making.
Rather, the term contemplates a process of reasoning." Id. at
277. The McCleary court concluded that the discretion of the
sentencing judge must be exercised on a rational and explainable basis.
For a sentence to be valid, there must be "a statement by the trial
judge detailing his reasons for selecting the particular sentence
imposed." Id. at 281.

Now, in the wake of Wisconsin's move to truth-in-sentencing, the
court in Gallion reinvigorated the McCleary directive
that the exercise of sentencing discretion must be set forth on the
record. "Although we do not change the appellate standard of review,
appellate courts are required to more closely scrutinize the record to
ensure that 'discretion was in fact exercised and the basis of that
exercise of discretion [is] set forth.'" (¶ 4) (citations
omitted).

Justice Bradley's majority opinion provides extensive guidance to
trial judges. Because of their significance, the court's directives are
set forth in detail as follows:

"Circuit courts are required to specify the objectives of the
sentence on the record. These objectives include, but are not limited
to, the protection of the community, punishment of the defendant,
rehabilitation of the defendant, and deterrence to others.

"Courts are to identify the general objectives of greatest
importance. These may vary from case to case. In some cases, punishment
and protection of the community may be the dominant objectives. In
others, rehabilitation of the defendant and victim restitution may be of
greater import. Still others may have deterrence or a restorative
justice approach as a primary objective.

"Courts are to describe the facts relevant to these objectives.
Courts must explain, in light of the facts of the case, why the
particular component parts of the sentence imposed advance the specified
objectives.

"Courts must also identify the factors that were considered in
arriving at the sentence and indicate how those factors fit the
objectives and influence the decision. In Harris [v.
State, 75 Wis. 2d 513, 250 N.W.2d 7 (1977)], we detailed factors
that courts may take into account in the exercise of discretion. These
factors assist courts in identifying relevant considerations at
sentencing. In addition, the legislature has mandated consideration of
applicable mitigating or aggravating factors [citing Wis. Stat. section
973.017(3)-(8)].

"In each case, the sentence imposed shall 'call for the minimum
amount of custody or confinement which is consistent with the protection
of the public, the gravity of the offense and the rehabilitative needs
of the defendant.' Accordingly, the circuit courts should consider
probation as the first alternative. Probation should be the disposition
unless: confinement is necessary to protect the public, the offender
needs correctional treatment available only in confinement, or it would
unduly depreciate the seriousness of the offense.

"If a circuit court imposes probation, it shall explain why the
conditions of probation should be expected to advance the objectives it
has specified. Likewise, if a circuit court imposes jail or prison, it
shall explain why the duration of incarceration should be expected to
advance the objectives it has specified. Finally, if a circuit court
imposes a bifurcated sentence for a crime committed after Dec. 31, 1999,
it shall explain why its duration and terms of extended supervision
should be expected to advance the objectives.

"In short, we require that the court, by reference to the relevant
facts and factors, explain how the sentence's component parts promote
the sentencing objectives. By stating this linkage on the record, courts
will produce sentences that can be more easily reviewed for a proper
exercise of discretion.

"Because we recognize the difficulty in providing a reasoned
explanation in isolation, we encourage circuit courts to refer to
information provided by others. Courts may use counsels' recommendations
for the nature and duration of the sentence and the recommendations of
the presentence report as touchstones in their reasoning. Courts may
also consider information about the distribution of sentences in cases
similar to the case before it. We note that Wis. Stat. §
973.017(2)(a) requires sentencing courts to consider any applicable
temporary sentencing guidelines adopted by the Criminal Penalties Study
Committee and to consider in the future any applicable guidelines
adopted by a sentencing commission.

"Although we anticipate less disparity with the advent of sentencing
guidelines, that does not mean there is less of a need for the exercise
of discretion. Individualized sentencing, after all, has long been a
cornerstone to Wisconsin's criminal justice jurisprudence.... Sentencing
guidelines will provide helpful information and serve as a touchstone
for explaining the reasons for the particular sentence imposed.

"We are mindful that the exercise of discretion does not lend itself
to mathematical precision. The exercise of discretion, by its very
nature, is not amenable to such a task. As a result, we do not expect
circuit courts to explain, for instance, the difference between
sentences of 15 and 17 years. We do expect, however, an explanation for
the general range of the sentence imposed. This explanation is not
intended to be a semantic trap for circuit courts. It is also not
intended to be a call for more 'magic words.' Rather, the requirement of
an on-the-record explanation will serve to fulfill the McCleary
mandate that discretion of a sentencing judge be exercised on a
'rational and explainable basis.' This will assist appellate courts in
determining whether the circuit court properly exercised its discretion"
(¶¶ 40-49) (citations omitted).

Family Law

Randy and Norma were married in 1990. In 1998 Norma gave birth to a
daughter, Selena. Randy paid all of the birthing expenses and is listed
as the child's father on the birth certificate. However, during the
conceptive period, Norma had an adulterous relationship with Brendan
that Randy did not know about. After the child's birth Randy continued
to pay all of her expenses and to provide a home for her and Norma.

In 1999 Norma was convicted of embezzlement and sentenced to eight
years in prison. It was only then that she told Randy that he might not
be the child's biological father.

Brendan subsequently filed a paternity action in Illinois where he
lived, seeking to have an Illinois court declare him to be the child's
father. This action was dismissed for lack of jurisdiction. In the
meantime, Randy filed for divorce and requested sole legal custody and
physical placement of the child. Norma counterclaimed with an assertion
that the child was not Randy's and with a request for genetic testing.
The circuit court ordered tests, which established a probability of
99.99 percent that Brendan is the child's biological father. Brendan was
thereafter permitted to intervene in the divorce action, and he asked to
have the girl declared his child. Paternity was tried to the court and,
for a number of reasons, the court adjudicated Randy as the legal
father. The circuit court accordingly dismissed Brendan from the divorce
action and dismissed Norma's counterclaim related to paternity. The
court of appeals affirmed, albeit on different grounds than those used
by the circuit court.

In a majority decision authored by Justice Roggensack, the supreme
court affirmed the court of appeals. First, the court rejected Brendan's
claim of a constitutionally protected liberty interest in his putative
paternity. "[I]n order for Brendan to have the necessary foundation for
a constitutionally protected liberty interest in his putative paternity,
he would have to have taken affirmative steps to assume his parental
responsibilities for Selena. In regard to his relationship with Selena,
the circuit court found that Brendan had no substantial relationship
with Selena, who is six years old and has lived with Randy as her father
all her life. Brendan is not listed as her father on her birth
certificate; he was not present at her birth; he did not pay for her
birthing expenses; he took no legal steps to assert his paternity until
she was 15 months old when he filed a paternity action in Illinois. When
that action was dismissed for lack of jurisdiction, he chose not to
proceed in this Wisconsin court action until it had been ongoing for
more than two years. And finally, he did not provide for Selena's
emotional and financial support, either before or after the genetic
tests were performed. Therefore, we conclude that the record fully
supports the circuit court's finding" (¶ 19).

The court also addressed the impact in this case of Wis. Stat.
section 891.41, which provides that a man is presumed to be a child's
natural father if he and the child's mother are or have been married to
each other and the child is conceived or born after marriage and before
the granting of a decree of legal separation, annulment, or divorce
between the parties. The statute further provides that this presumption
is rebutted by results of genetic testing that show that another man is
not excluded as the father of the child and that the statistical
probability of that other man's parentage is 99.0 percent or higher.

The supreme court concluded that, in this case, Brendan and Norma
should be equitably estopped from asserting the genetic test results as
proof to rebut the marital child presumption of section 891.41. "[W]e
conclude that Norma and Brendan's actions and lack of action, which were
relied on by both Selena and Randy, are so unfair, that when combined
with the state's interest in preserving Selena's status as a marital
child, they outbalance the public's interest in a purely biological
approach to parenthood" (¶ 31). In its analysis the court noted
that Wisconsin favors preserving the status of marital children, even
when it can be positively shown that the husband of the mother could not
have been the father of the child. It also found "very significant" the
findings of the circuit court that it would be in the child's best
interest to adjudicate Randy as the father.

The court rendered two other holdings in this decision. First, it
concluded that section 767.463 cannot be employed once genetic tests
have been completed. This statute permits a circuit court to dismiss a
paternity action to protect a child's best interest. Second, the court
concluded that the "equitable parent" doctrine should not be used in
paternity determinations. This doctrine originated in Atkinson v.
Atkinson, 408 N.W.2d 516 (Mich. App. 1987). An "equitable parent"
is described as one who through judicial determination is able to
exercise all the rights and responsibilities of a natural parent. "To
support the application of the equitable parent doctrine,
Atkinson required only a person: (1) who wants to be recognized
as the child's parent; (2) who is willing to support the child; (3) who
wants the rights of custody or visitation in regard to the child; and
(4) who raises 'certain circumstances,' that were otherwise undefined by
Atkinson" (¶ 32). In this case the Wisconsin Supreme Court
declined to employ the equitable parent doctrine because its parameters
are too indistinct and because permitting its use would create
uncertainties in the law. It further concluded that to the extent the
equitable parent doctrine has been employed in the past, "we preclude
its application in the future" (¶ 33).

Justice Crooks filed a concurring opinion.

TPR - Incest

Kelli B. gave birth to three children when she was between ages 17
and 20. All three children were fathered by Kelli's own father, who was
eventually convicted of incest and sent to prison. He agreed to
terminate his own parental rights to Kelli's three children. The county
commenced a termination of parental rights action against Kelli based on
the "incestuous parenthood" of her children, as provided by Wis. Stat.
section 48.415(7). A jury found the fact of incestuous parenthood and
the court later determined that it was in her childrens' best interest
to terminate Kelli's parental rights. The court of appeals, however,
reversed on the basis that a finding of incestuous parenthood in itself
could not demonstrate Kelli's unfitness as a parent.

The supreme court, in a decision authored by Justice Ann Walsh
Bradley, affirmed on the ground that the statute violated Kelli's right
to substantive due process. Wisconsin law clearly recognizes that a
"parent who has a substantial relationship with his or her child has a
fundamental interest in parenting the child" (¶ 23). Kelli met this
standard. In light of her fundamental interest, the next issue was
whether the statute was "narrowly tailored to advance a compelling
interest" (¶ 25). The court held it was not. "The reason it is not
narrowly tailored is that it renders people like Kelli per se unfit
solely by virtue of their status as victims. While we recognize a
correlation between perpetrators of incest and unfit parents, we fail to
see how being victimized by one's parent or relative necessarily
warrants the same conclusion. The fact of incestuous parenthood does
not, in itself, demonstrate that victims like Kelli are unfit parents"
(¶ 26). Although the state had a compelling interest in deterring
father-daughter incest and protecting children from psychological harm,
section 48.415(7) was not narrowly tailored to advance those interests
(¶ 28). Critical to this determination was the court's conclusion
that Kelli had been a "victim" of sexual assault; the majority declined
to address how "nonconsent" should be raised in future cases (that is,
is it a jury question?) (¶ 31). And aside from the constitutional
analysis, Kelli's position was supported by the state's public policy in
protecting crime victims.

Justice Roggensack did not participate. Justice Prosser, joined by
Justice Wilcox, dissented on the ground that the majority's analysis
creates potentially insoluble difficulties for future cases.

TPR - Summary Judgment - Substitutions - Notice

Steven V. filed a petition to terminate the parental rights (TPR) of
Kelley H. with respect to their son, Alexander. As grounds he relied on
Wis. Stat. section 48.415(4), alleging that Kelley had been denied
physical placement and visitation by court order for more than one year.
Although Kelley requested a jury trial, the court granted partial
summary judgment on the issue of unfitness because the facts were
undisputed. Following a dispositional hearing, the court terminated
Kelley's parental rights. The court of appeals affirmed.

The supreme court, in an opinion authored by Justice Sykes, also
affirmed albeit on different reasoning. First, the court addressed the
propriety of summary judgment methodology in TPR cases. It held that
"partial summary judgment in the unfitness phase of a TPR case is
available where the requirements of the summary judgment statute and the
applicable legal standards in Wis. Stat. §§ 48.415 and 48.31
have been met. An order granting partial summary judgment on the issue
of parental unfitness where there are no facts in dispute and the
applicable legal standards have been satisfied does not violate the
parent's statutory right to a jury trial under Wis. Stat. §§
48.422(4) and 48.31(2), or the parent's constitutional right to
procedural due process. Accordingly, partial summary judgment may be
granted in the unfitness phase of a TPR case where the moving party
establishes that there is no genuine issue as to any material fact
regarding the asserted grounds for unfitness under Wis. Stat. §
48.415, and, taking into consideration the heightened burden of proof
specified in Wis. Stat. § 48.31(1) and required by due process, the
moving party is entitled to judgment as a matter of law. We overrule
Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis.
2d 432 (Ct. App. 1994), to the extent that it outright prohibited
summary judgment in TPR proceedings. The circuit court's use of summary
judgment procedure was not error" (¶¶ 5-6).

The court examined several recently created grounds for terminating
parental rights based on court orders that establish unfitness. These
statutes evince "the legislature's manifest intent to enable unfitness
determinations to conclusively flow from certain existing court orders
that satisfy the statutory requirements" (¶ 39). Although Kelley
asserted a fundamental privacy interest, her due process rights did not
compel a jury trial under these circumstances (¶ 44).

Second, the court also held that Kelley was not entitled to a new
hearing despite the fact that the circuit court failed to inform her, at
the initial hearing, of her right under Wis. Stat. section 48.422(5) to
a continuance to consult with counsel regarding substitution of judge.
The court "withdrew" contrary language in two court of appeals decisions
and expressly held that "the circuit court does not have a statutory
duty to inform a party in a TPR case of the right to a continuance to
consult with counsel about judicial substitution" (¶ 52).

Chief Justice Abrahamson, joined by Justice Bradley, concurred but
asked the legislature and other concerned state agencies to "revisit"
the TPR statutes and the criteria for assessing unfitness.

Justice Prosser dissented because of his concern that the summary
judgment procedures, especially as allowed in this case, fatally erode
the right to trial by jury.

Sexually Violent Persons

Evidence - Prior Acts

Based on a jury's findings, Franklin was committed as a sexually
violent person pursuant to a Wis. Stat. chapter 980 hearing. The court
of appeals affirmed the commitment despite Franklin's claim that the
trial court erred by admitting other act evidence. The supreme court
granted review to "clarify whether § 904.04(2) applies to evidence
offered in ch. 980 commitment proceedings to prove that it is
substantially probable that the respondent will commit acts of sexual
violence in the future" (¶ 1).

In an opinion authored by Justice Roggensack, the supreme court
affirmed. In order to prove that a person is "sexually violent" and thus
subject to commitment under chapter 980, the state must demonstrate that
the respondent has a mental disorder and that it is substantially
probable that he or she will commit acts of sexual violence in the
future (¶ 7). After reviewing the case law, the doctrine, and
policies that govern the use of other act evidence, the court held that
Wis. Stat. section 904.04(2) "is not applicable when evaluating the
admissibility of evidence that is offered in a ch. 980 proceeding." The
court reasoned that chapter 980's prospective determination - will this
person be a danger in the future? - necessarily requires thorough
consideration of his or her past history: "To look forward we must
necessarily look back" (¶ 18). Scrutinizing the record in this
case, the court further held that the state's evidence, particularly
that evincing "past uncontrolled behavior" (¶ 22), was relevant and
that its probative value was not outweighed by the considerations set
forth in section 904.03 (for example, unfair prejudice). In sum, despite
the inapplicability of section 904.04(2) in chapter 980 cases, the
state's evidence must nonetheless be relevant under section 904.01 and
is subject to exclusion under section 904.03.

Chief Justice Abrahamson, joined by Justice Bradley, concurred, but
emphasized threshold relevancy problems posed by the state's evidence in
this case. The concurring justices would have found such error to be
harmless, however.